St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531 (1978)

MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins, dissenting.

Section 2(b) of the McCarran-Ferguson Act provides that the Sherman Act "shall be applicable to the business of insurance to the extent that such business is not regulated by State Law."{1} Section 3(b) limits the antitrust immunity which the States may confer by providing that the Sherman Act shall remain applicable to agreements or acts of "boycott, coercion, or intimidation."{2} Today the Court holds that the term "boycott" found in § 3(b) should be given the same broad meaning that it has been given in Sherman Act case law. It seems clear to me, however, that the "boycott, coercion, or intimidation" language of § 3(b) was intended to refer not to the practices defined and condemned by the Sherman Act, but to the narrower range of practices involved in United States v. South-Eastern Underwriters Assn., 322 U.S. 533, the case that prompted Congress to enact the McCarran-Ferguson Act.

I

The Court accurately reads the Act as not conferring broad-scale antitrust immunity on the insurance industry, at least not for practices that "occurred outside of any regulatory or cooperative arrangement established by the laws of Rhode Island." Ante at 553. Although Congress plainly intended to give the States priority in regulating the insurance industry, it just as plainly intended not to immunize that industry from federal antitrust liability "to the extent that such business is not regulated by State Law."{3} In thus construing the Act’s general purpose, the Court is true to the legislative history. But I cannot understand why the Court then tries to achieve that statutory purpose by giving an unduly expansive reading to § 3(b), when the provision that obviously was meant to accomplish that purpose was § 2(b). Properly read, § 2(b) suspends the federal antitrust laws only to the extent that an area or practice is regulated by state law.{4} Although the Court correctly notes that § 2(b) "is not in issue in this case," ante at 540, neither section can be construed entirely independently of the other.

The broad reading the Court gives to § 3(b) seems to me not only to misconceive the larger design of the Act, but also to distort its basic purpose. Section 3(b) is an absolute exception to § 2(b). It brings back under the Sherman Act a range of practices, whether authorized by state law or not.{5} By construing § 3(b) very expansively, the Court narrows the field of regulation open to the States. Yet it was clearly Congress’ intent to give the States generous license to govern the business of insurance free of interference from the antitrust laws.

Because I believe that the Court’s construction of § 3(b) overlooks the role of § 2(b) and misperceives congressional intent, I respectfully dissent.

II

It is true, as the Court says, that the McCarran-Ferguson Act fails to tell us in so many words that the phrase "boycott, coercion, or intimidation" should be read in some light other than that "tradition of meaning, as elaborated in the body of decisions interpreting the Sherman Act." Ante at 541. Yet the very selection of precisely those three words from the entire antitrust lexicon indicates that they were intended to have some special meaning apart from traditional usage. Indeed, if "boycott" is to be given the same scope it has in Sherman Act case law, then so should "coercion" and "intimidation." But that reading of § 3(b) would plainly devour the broad antitrust immunity bestowed by § 2(b).{6} Congress could not logically have intended that result. To understand the special sense in which it used the words "boycott, coercion, or intimidation," therefore, we must turn to the legislative history of the McCarran-Ferguson Act.

On November 20, 1942, the Justice Department secured an indictment against a private association of stock fire insurance companies and 27 individuals for alleged violations of §§ 1 and 2 of the Sherman Act. The prosecution came as a surprise to many, because Supreme Court precedents dating back 75 years had implied that the insurance industry was not a part of interstate commerce subject to congressional regulation under the Commerce Clause.{7} On this ground, the District Court sustained the defendants’ demurrer to the indictment on August 15, 1943,{8} and the Government took an appeal directly to the Supreme Court.

Uncertain about the continuing validity of many state regulations that conflicted with federal law, various insurance companies and organizations immediately sought relief from Congress. Some threatened to withhold state taxes on the ground that States were then thought to be prohibited from taxing interstate commerce.{9} These threats prompted state officials to press for congressional action too. Months before the Supreme Court even heard arguments in the case, duplicate bills had been introduced in both Houses of Congress which would have given the insurance industry blanket immunity from the Sherman and Clayton Acts.{10} A joint congressional committee held extensive hearings from September, 1943, into June, 1944, but a vote on the bills was delayed until after the Court announced its decision.

That decision came on June 5, 1944. The Court held that the business of insurance is part of interstate commerce, and that the Congress which enacted the Sherman Act had not intended to exempt that industry. United States v. South-Eastern Underwriters Assn., 322 U.S. 533. Of particular relevance to our inquiry is the Court’s description of the unlawful activities alleged in the South-Eastern Underwriters indictment:

The member companies of S.E.U.A. controlled 90 per cent of the fire insurance and "allied lines" sold by stock fire insurance companies in the six states where the conspiracies were consummated. Both conspiracies consisted of a continuing agreement and concert of action effectuated through S.E.U.A. The conspirators not only fixed premium rates and agents’ commissions, but employed boycotts together with other types of coercion and intimidation to force nonmember insurance companies into the conspiracies, and to compel persons who needed insurance to buy only from S.E.U.A. members on S.E.U.A. terms. Companies not members of S.E.U.A. were cut off from the opportunity to reinsure their risks, and their services and facilities were disparaged; independent sales agencies who defiantly represented non-S.E.U.A. companies were punished by a withdrawal of the right to represent the members of S.E.U.A.; and persons needing insurance who purchased from non-S.E.U.A. companies were threatened with boycotts and withdrawal of all patronage.

Id. at 535-536 (footnote omitted). The Court concluded:

Few states go so far as to permit private insurance companies, without state supervision, to agree upon and fix uniform insurance rates. . . . No states authorize combinations of insurance companies to coerce, intimidate, and boycott competitors and consumers in the manner here alleged, and it cannot be that any companies have acquired a vested right to engage in such destructive business practices.

Id. at 562. Before announcement of the Court’s opinion, the phrase "boycott, coercion, or intimidation" had appeared in none of the lengthy debates or numerous legislative proposals in Congress from September, 1943, to May, 1944.

The bill totally exempting the insurance industry from the Sherman and Clayton Acts passed the House of Representatives on June 22, 1944.{11} Although a majority of the Senate Committee recommended enactment of the House bill,{12} six members urged that the Senate not pass the bill, but wait for the legislative proposal then being drafted by the National Association of Insurance Commissioners, an organization of state officials.{13} The Senate let the House bill die that session,{14} and the Committee turned its attention to the recommendation of the state insurance commissioners.

The state officials proposed a statute that, after a moratorium period of several years, would have exempted from the Sherman Act a specific list of cooperative practices.{15} The proposed statute also provided: "Nothing contained in this section shall render the said Sherman Act inapplicable to any act of boycott, coercion, or intimidation."{16} The accompanying report explained the operation and the relationship of these two provisions:{17}

A suspension until July 1, 1948, is requested, in which the Sherman and Clayton Acts shall not apply, in order to allow adjustments within the business and time for enactment by States of such further legislation as they may deem necessary or desirable. After July 1, 1948, it is provided that the Sherman Act shall not apply to the use of cooperative rates, forms, and underwriting plans where State-approved, to adjustment, inspection and similar agreements[,] to acts of reinsurance or co-insurance, to commission agreements, to the collection of statistics, nor to cooperative action for making of rates, rules, or plans where their use is not mandatory.

No exemption is sought nor expected for oppressive or destructive practices. . . . Provision is made that the Sherman Act shall not now or hereafter be inapplicable to any act of boycott, coercion, or intimidation.

90 Cong.Rec. A4406 (1944).

This proposal formed the basis for S. 340, which was reported out with the unanimous support of the Senate Committee on the Judiciary in January 1945.{18} The list of specific practices immunized from antitrust liability was dropped, leaving the provision that suspended the Clayton and Sherman Acts for several years, during which time the States could accommodate their regulatory activities to the federal antitrust laws.{19} Even during the moratorium, however, the Sherman Act was to remain applicable to "any act of boycott, coercion, or intimidation."{20} This provision was not needed after the moratorium because the antitrust laws would take full effect after that time. Thus, the Senate bill as finally passed made federal antitrust policy paramount to state regulation.

The House passed a version of the bill striking the opposite balance. Its bill, too, carried a moratorium provision with the boycott limitation, but, at the end of that period, the federal antitrust laws would be preempted by state regulations even insofar as acts of "boycott, coercion, or intimidation" were concerned.{21}

A Conference Committee then within a short period worked out a compromise bill which became the present McCarran-Ferguson Act. Section 2(b) of this bill steered a middle course by making the Sherman Act, the Clayton Act, and the Federal Trade Commission Act applicable to the business of insurance after a moratorium period, but only "to the extent that such business is not regulated by State law."{22} At the same time, the "boycott, coercion, and intimidation" limitation on the States’ power to confer antitrust immunity was extended beyond the moratorium period to the full life of the Act.{23}

III

From this review of the legislative history, it should be clear that the scope given both §§ 2(b) and 3(b) is crucial to the effectuation of the compromise struck by the 79th Congress. If § 2(b) is construed broadly to preempt federal law without the need for specific state legislation and if § 3(b) is given no effect as a limitation on that preemption, the original House position prevails. On the other hand, if § 3(b) is construed as broadly as the Sherman Act itself, then the original Senate version largely prevails, no matter how § 2(b) is interpreted. Congress clearly intended a middle position between these extremes. That position cannot be given effect unless § 2(b) is read to preempt federal law only to the extent the States have actually regulated a particular area, and § 3(b) is viewed as referring to a range of evils considerably narrower than those prohibited by the Sherman Act.

From the legislative debates on S. 340, the Committee Reports, and the design of the statute itself, it is evident that the "boycott, coercion, or intimidation" provision is most fairly read as referring to the kinds of antitrust violations alleged in South-Eastern Underwriters -- that is, attempts by members of the insurance business to force other members to follow the industry’s private rules and practices. Repeatedly, Congressmen involved in the drafting of the statute drew a distinction between state regulation and private regulation.{24} Congress plainly wanted to allow the States to authorize anticompetitive practices which they determined to be in the public interest, as indicated by formal state approval.{25} Section 2(b) does just that. Congress just as plainly wanted to make sure that private organizations set up to govern the industry, such as the South-Eastern Underwriters Association, would not escape the reach of the federal antitrust laws. Section 2(b) also meets this concern to the extent that States do not authorize or sanction anticompetitive practices promoted by such organizations. But § 2(b) leaves open the possibility that States might, at the prompting of these powerful organizations, enact merely permissive regulations sufficiently specific to confer antitrust immunity, thus leaving those organizations free to coerce compliance from uncooperative competitors. Properly construed, § 3(b) fills this gap by keeping the Sherman Act fully applicable to private enforcement -- by the means described in the South-EasternUnderwriters case -- of industry rules and practices, even if those rules and practices are permitted by state law.{26} Similarly, where a State enacts its own antitrust laws conferring § 2(b) immunity, § 3(b) retains Sherman Act coverage for those especially "destructive . . . practices," 322 U.S. at 562, involved in South-Eastern Underwriters.

The key feature of § 3(b), then, is that the agreement or act of "boycott, coercion, or intimidation" must be aimed ultimately at a member of the insurance industry. As in South-Eastern Underwriters, the immediate targets may be policyholders or others outside the industry, but, unless they are boycotted, coerced, or intimidated for the purpose of forcing other insurance companies or agents to comply with industry rules, § 3(b) does not apply.

It follows, then, that § 3(b) does not reach the boycott alleged in this case. The respondents’ complaint does not contend that petitioner insurance companies refused to sell them insurance with the ultimate aim of disciplining or coercing other insurance companies. Rather, if there was an agreement among the petitioners, the complaint would indicate that it was entirely voluntary.

I would reverse the judgment of the Court of Appeals.

1. Section 2 provides in full:

(a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.

(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State Law.

59 Stat. 34, as amended, 61 Stat. 448, 15 U.S.C. § 1012 (1976 ed.).

2. Section 3 provides in full:

(a) Until June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, and the Act of June 19, 1936, known as the Robinson-Patman Anti-Discrimination Act, shall not apply to the business of insurance or to acts in the conduct thereof.

(b) Nothing contained in this chapter [Act] shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.

59 Stat. 34, as amended, 61 Stat. 448, 15 U.S.C. § 1013 (1976 ed.).

3. Seen. 1, supra, and n. 4, infra.

4. In the present case, the District Court, in an oral opinion, held that various Rhode Island laws, including state antitrust statutes, made the federal antitrust laws generally inapplicable to the petitioners under § 2(b). That ruling was implicitly accepted by the Court of Appeals, and has not been questioned here. See ante at 540 n. 9.

The legislative history in the Senate indicates that two kinds of state regulation were thought capable of suspending the federal antitrust laws under § 2(b). See 91 Cong.Rec. 1444 (1945) (remarks of Sen. O’Mahoney). First, a State could enact its own antitrust laws. Senator Murdock explained that,

[i]nsofar as [the state laws] fail to cover the same ground covered by the Sherman Act and the Clayton Act, those [federal] acts become effective again

after the moratorium. Ibid. Second, a State could enact laws regulating various aspects of the business of insurance, such as rates and terms of coverage. Senator Ferguson explained that,

if the States were specifically to legislate upon a particular point, and that legislation were contrary to the Sherman Act, the Clayton Act, or the Federal Trade Commission Act, then the State law would be binding.

Id. at 1481. See also id. at 1443 (remarks of Sen. McCarran and of Sen. Ferguson); id. at 1444 (remarks of Sen. White).

This Court has had few occasions to consider the operation of § 2(b). In SEC v. National Securities, Inc., 393 U.S. 453, the Court held that certain Arizona regulations protecting insurance company stockholders did not regulate t.he "business of insurance" within the meaning of § 2(b), and thus did not preempt the Securities Exchange Act of 1934. The case did not involve the antitrust proviso of § 2(b), and hence did not decide to what extent a State must regulate the "business of insurance" to preempt the federal antitrust laws.

FTC v. National Casualty Co., 357 U.S. 560, is the only case in this Court involving that question. There, the Court held that state statutes "prohibiting unfair and deceptive insurance practices," id. at 562, preempted Federal Trade Commission regulations

prohibiting respondent insurance companies from carrying on certain advertising practices found by the Commission to be false, misleading, and deceptive, in violation of the Federal Trade Commission Act. . . .

Id. at 561-562. Noting that no one had alleged that the state regulation was "mere pretense," the Court rejected the FTC’s argument that the state regulation was

too "inchoate" to be "regulation" until [the State’s statutory] prohibition has been crystallized into ’administrative elaboration of these standards and application in individual cases.

Id. at 564.

5. In Senator Ferguson’s words:

There are certain things which a State cannot interfere with. It cannot interfere with the application of the Sherman Act to any agreement to boycott, coerce, or intimidate, or an act of boycotting, coercion, or intimidation.

91 Cong.Rec. 1443 (1945).

6. Most practices condemned by the Sherman Act can be cast as an act or agreement of "boycott, coercion, or intimidation." For example, price-fixing can be seen either as a refusal to deal except at a uniform price (i.e., a boycott), or as an agreement to force buyers to accept an offer on the sellers’ common terms (i.e., coercion). Yet state-sanctioned price-fixing immunized by § 2(b) was plainly not intended to fall within the § 3(b) exception. See 91 Cong.Rec. 1481 (1945) (remarks of Sen. Ferguson).

7. See H.R.Rep. No. 143, 79th Cong., 1st Sess., 2 (1945).

8. United States v. South-Eastern Underwriters Assn., 51 F.Supp. 712 (ND Ga.).

9. See H.R.Rep. No. 143, supra at 2.

10. H.R. 3270, S. 1362, 78th Cong., 1st Sess. (1943).

11. 90 Cong.Rec. 6510 (1944) .

12. S.Rep. No. 1112, 78th Cong., 2d Sess. (1944).

13. Id., pt. 2, at 6.

14. 90 Cong.Rec. 8054 (1944).

15. Id. at A4406

16. Ibid.

17. The report also appeared to reflect the testimony of Attorney General Biddle, who, on the day after H.R. 3270, seen. 10 supra, passed the House, appeared before the Senate Judiciary Subcommittee that was considering this same legislation. He assured the Subcommittee that the Government did not intend to bring new prosecutions while Congress was considering legislation on the subject, but he insisted that the South-Eastern case should and would go forward because of the seriousness of the charges. After quoting a portion of the Court’s opinion set out in the text, supra at 560-561, he stated:

[T]hat case was not merely a price-fixing case, but involved very serious boycotting. It involved boycotting by insurance companies of agents who would not belong to the association, and, under the laws of the State in which the association operated, many of the acts alleged in the indictment would have been illegal.

Joint Hearing on S. 1362 et al. before the Subcommittees of the Committees on the Judiciary, 78th Cong., 2d Sess., 636 (1944).

18. S.Rep. No. 20, 79th Cong., 1st Sess. (1945).

19. In the floor debates, several Senators pointed out that the bill could be read to support preemption of the federal antitrust laws by state regulations. 91 Cong.Rec. 480 (1945). To clarify its intent, the Senate amended S. 340 on the floor to make the antitrust laws expressly and fully applicable after the moratorium period. Id. at 488.

20. As the bill came out of committee, the boycott provision applied only to the section establishing a short-term moratorium. Id. at 479. A proposal to extend the boycott provision to the full Act was offered by Senator Murdock and accepted by Senator Ferguson, ibid., but was never ratified by the Senate.

That the boycott exception was originally drafted only to keep the Sherman Act partially in effect during the moratorium suggests that the provision may have been initially intended to prevent interference with the prosecution of the defendants in South-Eastern Underwriters, who still faced trial following the decision of this Court. Certainly, many Congressmen expressed their opposition to legislation that would free those defendants from liability. See, e.g., 90 Cong.Rec. 6450 (1944) (remarks of Rep. Celler); id. at 6452 (remarks of Rep. LaFollette); Joint Hearings, supra,n. 17, at 637 (remarks of Sen. Hatch). On its face, the boycott provision removed any doubt about the Government’s authority to continue with that prosecution. Whatever its initial impetus, however, there is no indication that the provision was finally thought to be applicable only to the South-Eastern litigation.

21. See 91 Cong.Rec. 1085 (1945); see also id. at 1484-1485.

22. Seen. 1, supra.

23. Seen. 2, supra.

24. See, e.g., 91 Cong.Rec. 1480, 1483, 1485 (1945) (remarks of Sen. O’Mahoney); id. at 1481 (remarks of Sen. Ferguson).

25. See id. at 1486 (remarks of Sen. O’Mahoney).

26. See id. at 1485-1486 (remarks of Sen. O’Mahoney).